Separation Agreement and General Release (South Dakota)

SEPARATION AGREEMENT AND GENERAL RELEASE

State of South Dakota

PRIVILEGED AND CONFIDENTIAL

IMPORTANT -- SOUTH DAKOTA LAW NOTES: South Dakota's final pay statute requires payment within five (5) business days of separation if a payroll system is available (SDCL § 60-11-10). South Dakota has limited statutory provisions regarding non-competes (SDCL § 53-9-8 through § 53-9-12), which generally prohibit restraints on trade but allow narrow exceptions for the sale of business goodwill and employee agreements not to engage in a similar business within a specified area.

This Separation Agreement and General Release ("Agreement") is entered into by and between:

EMPLOYER: [________________________________] ("Company"), a [________________________________] organized under the laws of [________________________________], with its principal place of business at [________________________________]

EMPLOYEE: [________________________________] ("Employee"), an individual residing at [________________________________], South Dakota [____]

(Company and Employee are each a "Party" and collectively the "Parties.")

Date of Agreement: [__/__/____]

RECITALS

WHEREAS, Employee has been employed by Company in the position of [________________________________] since [__/__/____], working primarily in the State of South Dakota;

WHEREAS, the Parties have mutually agreed that Employee's employment shall end effective [__/__/____] (the "Separation Date");

WHEREAS, Company desires to provide separation benefits beyond what Employee is otherwise entitled to receive;

WHEREAS, Employee has been advised to consult with an attorney;

NOW, THEREFORE, in consideration of the mutual promises, the Parties agree as follows:

ARTICLE 1: SEPARATION OF EMPLOYMENT

1.1 Separation Date. Employment terminates effective the Separation Date.

1.2 Last Day of Work. [__/__/____].

1.3 Final Wages -- South Dakota Requirements.

(a) Final Pay Timing (SDCL § 60-11-10). When an employee separates from employment (whether by discharge or resignation), Company shall pay all wages due within five (5) business days after the date of separation, provided that a regular payday for the period is not available within such time. If a regular payday occurs within five business days, wages may be paid on that regular payday.

(b) Method of Payment. Final wages may be paid by the usual method (direct deposit, check, etc.). If Employee has been discharged, wages may be mailed if requested.

(c) PTO/Vacation Payout. South Dakota does not mandate payout of accrued vacation/PTO by statute. If Company policy or employment agreement provides for payout, such amounts constitute wages and must be paid. Amount (if applicable): $[________________________________].

(d) Penalties. South Dakota does not have a specific penalty statute comparable to other states' penalty wage provisions. However, an employer who willfully fails to pay wages may be subject to a civil action for unpaid wages plus costs and attorneys' fees under general contract principles.

(e) Wage Deductions. No unauthorized deductions from final wages.

1.4 Expense Reimbursement. Within [____] days of the Separation Date.

ARTICLE 2: SEVERANCE CONSIDERATION

2.1 Severance Payment.

☐ Lump Sum: $[________________________________], less applicable withholdings, within [____] days following the Effective Date.

☐ Installments: $[________________________________] per [____], for [____] months.

2.2 Benefits Continuation.

☐ COBRA Subsidy: [____] months.
☐ SD Continuation Coverage: South Dakota requires continuation of group health coverage for up to 18 months for employers with 2+ employees, or 29 months for disabled individuals (SDCL § 58-18-7.5).
☐ Lump Sum: $[________________________________].

2.3 Outplacement. [________________________________]

2.4 Other Benefits. [________________________________]

2.5 Tax Treatment. Subject to applicable withholdings. (Note: South Dakota has no state income tax.)

2.6 Adequacy of Consideration. Exceeds amounts already owed.

ARTICLE 3: EQUITY, BONUS, AND OTHER COMPENSATION

3.1 Equity Awards. [________________________________]

3.2 Bonus/Commissions. [________________________________]

3.3 Section 409A. Compliance intended.

ARTICLE 4: GENERAL RELEASE OF CLAIMS

4.1 Employee Release. Employee hereby voluntarily, knowingly, and irrevocably releases and forever discharges the Released Parties from all claims, including but not limited to:

(a) Federal Statutes:

• Title VII, ADEA (subject to Article 6), ADA, Pregnant Workers Fairness Act (PWFA) (42 U.S.C. § 2000gg et seq.), FMLA, Equal Pay Act, GINA, USERRA, ERISA (excluding vested benefits), WARN Act, Section 1981, Sarbanes-Oxley, Dodd-Frank

(b) South Dakota Human Relations Act (SDHRA) (SDCL § 20-13-1 et seq.):

• The SDHRA prohibits employment discrimination based on race, color, creed, religion, sex, ancestry, disability, and national origin
• Enforced by the South Dakota Division of Human Rights (SDDHR), within the South Dakota Department of Labor and Regulation
• Applies to employers with one (1) or more employees (for certain provisions)
• Administrative complaints must be filed with the SDDHR within 180 days of the alleged discriminatory act
• After investigation, the SDDHR may attempt conciliation or refer to the Attorney General for civil action
• Remedies: Back pay, reinstatement, injunctive relief, compensatory damages, and reasonable costs
• South Dakota's statute does not explicitly list age as a protected class under the SDHRA; federal ADEA applies for age discrimination claims (employees age 40+)

(c) Other South Dakota Statutes:

• South Dakota Wage and Hour Laws (SDCL Chapter 60-11)
• South Dakota Workers' Compensation (SDCL Chapter 62) (excluding existing claims)
• South Dakota Employment Security Law (SDCL Chapter 61)

(d) Common Law Claims: Breach of contract, wrongful discharge in violation of public policy, tortious interference, defamation, fraud, intentional or negligent infliction of emotional distress, invasion of privacy, and all other South Dakota common law claims.

4.2 Standard Carve-Outs. This Release does NOT waive or release:

(a) Rights to enforce this Agreement;
(b) Post-signing claims;
(c) Vested ERISA benefits;
(d) Unemployment insurance benefits;
(e) Workers' compensation benefits;
(f) Indemnification rights;
(g) Right to file or cooperate with the EEOC, NLRB, SEC, OSHA, SDDHR, SD Department of Labor and Regulation, or any governmental agency;
(h) NLRA Section 7 rights;
(i) Speak Out Act protections;
(j) Non-waivable rights.

4.3 Unknown Claims. Release covers known and unknown claims to the fullest extent permitted by South Dakota law.

4.4 Company Release. Standard mutual release with exceptions.

ARTICLE 5: DEFEND TRADE SECRETS ACT -- WHISTLEBLOWER IMMUNITY NOTICE

Pursuant to 18 U.S.C. § 1833(b):

"An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order."

ARTICLE 6: OWBPA / ADEA COMPLIANCE (EMPLOYEES AGE 40 AND OLDER)

6.1 Knowing and Voluntary Waiver. Per OWBPA, 29 U.S.C. § 626(f).

6.2 Consideration Period.

☐ Individual (21 days).

☐ Group Exit (45 days). Decisional unit disclosure: Exhibit A.

6.3 Revocation Period. Seven (7) calendar days. Written revocation to [________________________________]. Effective Date: eighth day.

6.4 Advice of Counsel. Employee is advised in writing to consult with an attorney.

6.5 No Waiver of Future Claims.

6.6 Additional Consideration. Exceeds amounts already owed.

ARTICLE 7: CONFIDENTIALITY, NON-DISPARAGEMENT, AND PROTECTED DISCLOSURES

7.1 Confidentiality. Standard terms with carve-outs.

7.2 Non-Disparagement (McLaren Macomb-Compliant). Mutual; NLRA Section 7 carve-out per McLaren Macomb, 372 NLRB No. 58 (2023).

7.3 Protected Disclosures. Employee may:

(a) File with EEOC, NLRB, SEC, OSHA, SDDHR, or any agency;
(b) Cooperate with investigations;
(c) Testify truthfully;
(d) Engage in NLRA Section 7 activity;
(e) Make Speak Out Act and DTSA-protected disclosures.

7.4 Confidential Business Information. Per existing agreements and South Dakota trade secret law (SDCL § 37-29-1 et seq.).

ARTICLE 8: RESTRICTIVE COVENANTS

8.1 South Dakota Non-Compete Law (SDCL § 53-9-8 through § 53-9-12).

South Dakota's restraint of trade statutes provide:

• SDCL § 53-9-8: Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind is to that extent void, except as provided by SDCL §§ 53-9-9, 53-9-10, and 53-9-11
• SDCL § 53-9-11: An employee may agree with an employer at the time of employment or during employment not to engage directly or indirectly in the same business as the employer or in a similar business within a specified geographic area, provided the restriction is reasonable as to time and scope
• South Dakota courts apply a reasonableness analysis considering the legitimate business interests protected, duration, geographic scope, and hardship on the employee
• Limited enforcement history -- South Dakota has relatively few published opinions on non-competes, but courts generally follow mainstream reasonableness principles
• Courts may consider whether the restriction is necessary to protect trade secrets, customer relationships, or proprietary information

☐ No Non-Compete.
☐ Existing Non-Compete. Duration: [____] months. Geographic scope: [________________________________]. Activity: [________________________________].

8.2 Non-Solicitation. [________________________________]

8.3 Existing NDAs/Invention Assignment. Survive per their terms.

8.4 No-Rehire. ☐ Applicable. ☐ Not applicable.

ARTICLE 9: RETURN OF COMPANY PROPERTY

9.1 Within [____] days, return all Company property. 9.2 No copies retained. 9.3 Transition cooperation for [____] days.

ARTICLE 10: DISPUTE RESOLUTION

10.1 Governing Law. Laws of South Dakota.

10.2 Forum. State or federal courts in [________________________________] County, South Dakota.

10.3 Arbitration. ☐ Not applicable. ☐ Applicable (with standard exclusions).

10.4 Jury Waiver. ☐ Mutual waiver. ☐ Not applicable.

ARTICLE 11: GENERAL PROVISIONS

11.1 Entire Agreement. 11.2 Amendments. Written only. 11.3 Severability. 11.4 Waiver. 11.5 Counterparts. Electronic signatures valid. 11.6 Successors and Assigns. 11.7 No Admission. 11.8 Section 409A.

ARTICLE 12: SOUTH DAKOTA-SPECIFIC COMPLIANCE CHECKLIST

☐ Final wages paid within 5 business days of separation (SDCL § 60-11-10)
☐ Final wages NOT conditioned on execution of this Agreement
☐ PTO/vacation payout per Company policy (if promised, must be paid)
☐ SDHRA claims enumerated (SDCL § 20-13-1 et seq.) -- 180-day filing deadline
☐ Age discrimination addressed under federal ADEA (SD does not explicitly list age in SDHRA)
☐ Non-compete (if any) reasonable in time and geographic scope (SDCL § 53-9-11)
☐ No state income tax -- federal withholdings only
☐ OWBPA consideration period provided (21 or 45 days)
☐ 7-day ADEA revocation period provided
☐ Employee advised to consult an attorney
☐ DTSA whistleblower immunity notice included (18 U.S.C. § 1833(b))
☐ McLaren Macomb NLRA Section 7 carve-out included
☐ Speak Out Act protections preserved
☐ SDDHR filing rights preserved

ARTICLE 13: SIGNATURES

PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, INCLUDING CLAIMS UNDER THE SOUTH DAKOTA HUMAN RELATIONS ACT.

EMPLOYER: Signature: _____________________________ Date: [__/__/____]

Name: [________________________________] Title: [________________________________]

EMPLOYEE: Signature: _____________________________ Date: [__/__/____]

Name: [________________________________]

EXHIBITS:

☐ Exhibit A -- OWBPA Decisional Unit Disclosure (if applicable)
☐ Exhibit B -- Severance Payment Schedule
☐ Exhibit C -- Non-Compete Terms (if applicable)
☐ Exhibit D -- Reference Letter

Sources and References

• SD Human Relations Act: SDCL § 20-13-1 et seq.
• SD Final Pay: SDCL § 60-11-10
• SD Restraint of Trade: SDCL § 53-9-8 et seq.
• SD Division of Human Rights: SDDHR
• OWBPA: 29 U.S.C. § 626(f)
• DTSA: 18 U.S.C. § 1833(b)
• McLaren Macomb: 372 NLRB No. 58 (2023)

This template is provided for informational purposes only. South Dakota has no state income tax. Verify current non-compete enforcement trends. Consult a qualified South Dakota attorney before use.

Generated for use on the ezel.ai platform.